Guide The Judicial Construction of Europe

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Some constraints however apply to the Court when considering closed evidence: first, the Court may take into account the confidential information only if it is essential for the decision in the case; second, the Court must confine itself to information that is strictly necessary; and third, in its final judgment the Court must take into account that the applicant has not been able to make their views known on the closed evidence against them.

Although these constraints are necessary they do not compensate for the fact that not even the gist of closed evidence was disclosed to the applicant, which is a requirement in the case law of the ECtHR. The fact that the EU procedure for closed evidence does not comply with the case law of the ECtHR may leave the Member States in a difficult legal position.

If they followed the EU closed evidence procedure they would infringe their duty under ECtHR to disclose in all cases at least the gist of the incriminatory information. This would in turn negatively affect the relations and trust between the Strasbourg and Luxembourg courts. Sharing official secrets requires a high level of trust. Especially in issues of national security, sharing secrets among Member States or between them and the EU institutions has been a challenge, to say the least.

In fact, this lack of trust and lack of sharing of information by national authorities with the Court, was what led to the revision of the procedural rules in the first place.

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The Court was continuously annulling EU restrictive measures against terrorist suspects EU counter-terrorist sanctions by the Council when it was not receiving access to the confidential or even classified information on the basis of which the sanctions were presumably adopted. The use of closed evidence is not permitted in most Member States. If the EU courts use the closed evidence procedure in a manner that does not comply with the ECtHR, it would not be a surprise if national constitutional courts stepped in to ensure fundamental rights, resulting in even greater tensions and power struggles.

How the EU courts would respond to such a message could be a new test to the limits of judicial cooperation in Europe, but also the legitimacy of the EU closed evidence procedure, as well as ultimately the EU itself. With the increased EU involvement with security issues, including the military , classic tensions between the rule-of-law demands for transparency and accountability on the one hand and the need for confidentiality on the other will only grow in the EU.

How should the EU resolve this tension? EU courts carry out important checks on national executive power. The case law on the sanctions regime illustrates that EU courts can — to some extent — constrain executive power, including in an area in which judicial review traditionally allows for great discretion of executive actors. It is hence of outmost importance that the EU courts continue to conduct a rigorous review of the exercise of executive powers in matters of security.

The EU closed evidence procedure is not a step in that direction and should be reconsidered.


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Whatever precise way is chosen to resolve the tension between confidentiality and transparency, it must comply with the ECHR as interpreted by the ECtHR. Rather, the EU must establish an open debate and have public deliberations on how to reconcile openness and secrecy, especially when EU fundamental rights are directly affected in order to accommodate security rationales.

Ultimately, the most important legitimating factor for the EU as a security and human rights actor is the trust of EU citizens in how the EU defends human rights and their security interests. Procedural talks behind closed doors are hardly the way to gain public trust. Vigjilenca Abazi is assistant professor of European law at Maastricht University. Although such a reference may be made only by a national court, which alone has the power to decide that it is appropriate do so, all the parties involved — that is to say, the Member States, the parties in the proceedings before national courts and, in particular, the Commission — may take part in proceedings before the Court of Justice.

In this way, a number of important principles of Union law have been laid down in preliminary rulings, sometimes in answer to questions referred by national courts of first instance. However, the German Constitutional Court has rarely turned to the European Court of Justice, which is why lawyers and law professors warn about a future judicial conflict between the two courts.

The constitutional courts of the member-states have in general been reluctant to refer a question to the European Court of Justice. Procedure before the ECJ is determined by its own rules of procedure. The proceedings are conducted in one of the official languages of the European Union chosen by the applicant, although where the defendant is a member state or a national of a member state the applicant must choose an official language of that member state, unless the parties agree otherwise.

The Judicial Construction of Europe

However the working language of the court is French and it is in this language that the judges deliberate, pleadings and written legal submissions are translated and in which the judgment is drafted. These opinions are then translated into French for the benefit of the judges and their deliberations. All the EU's judicial bodies are based in Luxembourg City , separate from the political institutions in Brussels and Strasbourg. The Court of Justice is based in the Palais building, currently under expansion, in the Kirchberg quarter of Luxembourg City.

Luxembourg City was chosen as the provisional seat of the Court on 23 July with the establishment of the European Coal and Steel Community. In , the member states established Luxembourg City as the permanent seat of the Court. The decision was confirmed by the European Council at Edinburgh in However, there was no reference to future bodies being in Luxembourg City. In reaction to this, the Luxembourgian government issued its own declaration stating it did not surrender those provisions agreed upon in The Edinburgh decision was attached to the Amsterdam Treaty.

With the Treaty of Nice Luxembourg attached a declaration stating it did not claim the seat of the Boards of Appeal of the Office for Harmonisation in the Internal Market — even if it were to become a judicial body. Over time ECJ developed two essential rules on which the legal order rests: direct effect and primacy. The court first ruled on the direct effect of primary legislation in a case that, though technical and tedious, raised a fundamental principle of Union law.

In Van Gend en Loos , a Dutch transport firm brought a complaint against Dutch customs for increasing the duty on a product imported from Germany.

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The court ruled that the Community constitutes a new legal order, the subjects of which consist of not only the Member States but also their nationals. The principle of direct effect would have had little impact if Union law did not supersede national law. Without supremacy the Member States could simply ignore EU rules. In Costa v ENEL , the court ruled that member states had definitively transferred sovereign rights to the Community and Union law could not be overridden by domestic law.

That decision is often thought to be the best example of the European legal order's divergence with ordinary international law. Further, in the Francovich case, the ECJ established that Member States could be liable to pay compensation to individuals who suffered a loss by reason of the Member State's failure to transpose an EU directive into national law. Some MEPs and industry spokesmen have criticised the ruling against the use of gender as factor in determining premiums for insurance products.

The EU's rules on sex discrimination specifically permit discrimination in insurance if there is data to back it up". The status and jurisdiction of the ECJ has been questioned by representatives of member states' judiciary:. The ECJ has also been criticised for spending too much money. From Wikipedia, the free encyclopedia. Not to be confused with the European Court of Human Rights , the supranational court based in Strasbourg. For other uses, see ECJ disambiguation.

European Union. Member States. The Treaties. Treaties of Accession. Abandoned treaties and agreements. European Council. European Commission. European Parliament Members.

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Council of the EU Presidency. European Court of Justice. Eurozone Members. European Central Bank. Schengen Area. Participating Schengen Area States. European Economic Area. EEA Members. Court of Auditors. Budget OLAF. Other Bodies. Policies and Issues.

Unofficial EU Currencies. Non-Schengen Area States.

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Candidate Countries for EU Membership. Foreign Relations. High Representative. Foreign relations of EU Member States. Other countries Atlas. Further information: History of the European Union. Further information: List of members of the European Court of Justice. Further information: Location of European Union institutions. Europa web portal. Retrieved 19 March Retrieved 19 April Courthouse News Service. Yet its record as a judicial institution has been little scrutinised.

The Political System of the European Union 2nd ed. Retrieved 14 November Court of Justice. Retrieved 27 August Retrieved 5 January Spiegel Online International.

Contact Alec Stone Sweet

OpEd article in the EUobserver. Retrieved 27 January Court of Justice of the European Union. Rulings and case law preliminary ruling.


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